Exhibit 4.4
AMENDMENT NO. 1 TO
INVESTOR RIGHTS AGREEMENT, WAIVER AND CONSENT
THIS AMENDMENT NO. 1 TO INVESTOR RIGHTS AGREEMENT, WAIVER AND CONSENT,
dated as of March 28, 2000 (this "Agreement"), is by and among
---------
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc., a corporation organized under the laws of the State of
Delaware (the "Company"), and the undersigned, for themselves and on behalf of
-------
each of the Investors (as defined in the Investor Rights Agreement (as
hereinafter defined)).
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company and certain stockholders of the Company are
parties to that certain Investor Rights Agreement, dated as of January 6, 2000
(the "Investor Rights Agreement"); and
-------------------------
WHEREAS, the Company contemplates entering into an equity financing
with certain of the undersigned; and
WHEREAS, it is a condition to the consummation of such equity
financing that the Company and the undersigned enter into this Agreement, which
will amend the Investor Rights Agreement as hereinafter provided; and
WHEREAS, Section 3.4 of the Investor Rights Agreement grants to each
of the Investors a right of first refusal to purchase all or any part of such
investor's pro rata share of New Securities (as defined therein); and
WHEREAS, Section 5(c) of the Investor Rights Agreement provides that
the Investors (as defined therein) holding at least 66 2/3% of the Securities
(as defined therein) (on an as-converted basis) then held by the Investors may
amend and waive the Investor Rights Agreement; and
WHEREAS, the undersigned Investors own at least 66 2/3% of the
Securities (on an as-converted basis) presently held by the Investors; and
WHEREAS, the parties desire to enter into this Agreement on the terms
hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereto agree as follows:
Section 1. Definitions. Terms used but not defined in this Agreement are
-----------
used as defined in the Investor Rights Agreement.
Section 2. Amendments. The Investor Rights Agreement is hereby amended as
----------
follows:
(a) Section 1 of the Investor Rights Agreement is hereby amended by adding
the following definitions:
"LHC Director" shall have the meaning set forth in Section 2.1 of this
------------
Agreement.
"Merger Agreement" shall mean the Agreement and Plan of Merger, dated
----------------
as of January 6, 2000, among the Company, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. and ARC
Merger Sub-1, Inc.
"Purchase Offer" shall have the meaning ascribed to it in Section
--------------
3.5(a) of this Agreement.
"Purchase Offeror" shall have the meaning ascribed to it in Section
----------------
3.5(a) of this Agreement.
"Regulated Holder" shall mean any Investor and its Affiliates which,
----------------
as of the date on which such Investor became a party to this Agreement, are
subject to the provisions of the Bank Holding Company Act of 1956, as
amended (including Regulation Y thereunder).
"Selling Investor" shall have the meaning ascribed to it in Section
----------------
3.5(a) of this Agreement.
"Series A-6 Preferred Stock" shall mean the Series A-6 Preferred
--------------------------
Stock, par value $.001 per share, of the Company, and any security issued
or issuable with respect to any Series A-6 Preferred Stock upon conversion
thereof in accordance with its terms or by way of stock dividend or stock
split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization or otherwise.
"Series A-7 Preferred Stock" shall mean the Series A-7 Preferred
--------------------------
Stock, par value $.001 per share, of the Company, and any security issued
or issuable with respect to any Series A-7 Preferred Stock upon conversion
thereof in accordance with its terms or by way of stock dividend or stock
split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization or otherwise.
(b) The definition of "Investor Group One" in Section 1 of the Investor
Rights Agreement is hereby amended and restated in its entirety to read as
follows:
"Investor Group One Director" shall have the meaning set forth in
---------------------------
Section 2.1 of this Agreement.
(c) The definition of "Securities" in Section 1 of the Investor Rights
Agreement is hereby amended and restated in its entirety to read as follows:
2
"Securities" shall mean shares of (i) any Class A Common Stock
----------
(except, other than as to shares of Class A Common Stock issued upon
conversion of shares of Preferred Stock, in the case of Premier Research
Worldwide, Ltd.), Series A-1 Preferred Stock, Series A-2 Preferred Stock,
Series A-3 Preferred Stock, Series A-4 Preferred Stock, Series A-5
Preferred Stock, Series A-6 Preferred Stock, or Series A-7 Preferred Stock
of the Company held by the Investors immediately prior to the date hereof
or any series of Preferred Stock purchased or acquired (by exchange,
conversion or otherwise) by the Investors after the date hereof, (ii) any
Class A Common Stock of the Company issued or issuable upon conversion of
any of the Series A-1 Preferred Stock, Series A-2 Preferred Stock, Series
A-3 Preferred Stock, Series A-4 Preferred Stock, Series A-5 Preferred
Stock, Series A-6 Preferred Stock, or Series A-7 Preferred Stock or any
Preferred Stock purchased or acquired (by exchange, conversion or
otherwise) by the Investors after the date hereof, and (iii) any Class A
Common Stock of the Company issued or issuable with respect to any of the
securities referred to in clauses (i) and (ii) above by way of stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or
otherwise.
(d) Section 2.1 of the Investor Rights Agreement is hereby amended and
restated in its entirety to read as follows:
"From and after the effective time of this Agreement until the provisions
of this Section 2 cease to be effective pursuant to Section 2.7, each
Investor shall vote all Securities owned by such Investor or over which
such Investor has voting control and shall take all other necessary or
desirable actions within such Investor's control (whether in such
Investor's capacity as a stockholder, director, member of a committee of
the Board of Directors of the Company or otherwise, and including, without
limitation, attendance at meetings in person or by proxy for purposes of
obtaining a quorum and execution of written consents in lieu of meetings),
and the Company shall take all necessary or desirable action within its
control (including, without limitation, calling special meetings of the
Board of Directors or the stockholders of the Company), so that:
(a) The authorized number of directors on the Board shall be
established and remain at no less than nine directors.
(b) The following individuals shall be elected to the Board of
Directors of the Company:
(i) one representative (the "Investor Group One Director")
--------------------------
designated by the holders of the Series A-1 Preferred Stock, the Series A-2
Preferred Stock and the Series A-3 Preferred Stock (collectively, "Investor
--------
Group One");
---------
(ii) one representative (the "Investor Group Two Director")
---------------------------
designated by the holders of the Series A-4 Preferred Stock and the Series
A-5 Preferred Stock (collectively, "Investor Group Two");
------------------
3
(iii) one representative (the "LHC Director") designated by
-----------
LHC Corporation, Inc.; provided it continues to hold shares of Series
A-6 Preferred Stock;
(iv) the Chief Executive Officer of the Corporation;
(v) the Chairman of the Board of the Corporation;
(vi) two persons who shall be physicians that are
associated with the investigative research sites of the Company; and
(vii) two persons who shall be Independent Directors."
(e) Sections 2.4 through 2.6 of the Investor Rights Agreement are hereby
deleted and replaced with the following:
2.4 In the event that any Investor Group One Director, Investor
Group Two Director or LHC Director ceases to serve as a director during his
or her term of office, the resulting vacancy on the Board of Directors
shall be filled by a representative designated by the Investor(s) that
initially designated the departing director.
2.5 If Investor Group One, Investor Group Two or LHC Director fails
to designate a representative to fill a directorship pursuant to the terms
of this Section 2, the individual previously holding such directorship
shall be elected to such position, or if such individual has been removed
as a director or fails or declines to serve, the vacancy shall be filled
with an individual designated by holders of a majority of the Securities
then held by the Investor(s); provided that the Investor(s) shall vote to
remove such individual if the party which failed to designate such
directorship so directs.
2.6 The Company will permit a representative of each of The CIT
Group/Equity Investments, Inc., Charter Growth Capital, L.P., Delphi
Ventures IV, L.P., Delphi BioInvestments IV, L.P. and Charter Growth
Capital Co-Investment Fund, L.P. to attend all meetings of its Board of
Directors in a non-voting observer capacity and, in this respect, shall
provide such representatives copies of all notices, minutes, consents and
other material that it provides to its directors; provided, however, that
-------- --------
the Company reserves the right to exclude such representatives from access
to any material or meeting or portion thereof if the Company reasonably
believes upon advice of counsel that such exclusion is reasonably necessary
to preserve the attorney-client privilege, to protect highly confidential
proprietary information or for other similar reasons.
2.7 The rights and requirements under this Section 2 shall terminate
at the closing of a Public Offering."
(f) The first clause of Section 3.1 of the Investor Rights Agreement is
hereby amended and restated to read in its entirety as follows:
4
"The Company will furnish the following reports to each Investor so
long as, except with respect to Charter Growth Capital, L.P., Charter
Growth Capital Co-Investment Fund, L.P., Delphi Ventures IV, L.P., Delphi
BioInvestments IV, L.P. and The CIT Group/Equity Investments, Inc., such
Investor (or its Affiliates) holds Securities having the right to vote
generally representing at least five percent 5% of the voting power of the
Company:"
(g) Section 3.4(a) of the Investor Rights Agreement is hereby amended and
restated in its entirety to read as follows:
"New Securities" shall mean any capital stock of the Company, whether
--------------
now authorized or not, and rights, options or warrants to purchase shares
of capital stock of the Company, and securities of any type whatsoever that
are, or may become, convertible into shares of capital stock of the
Company; provided that the term "New Securities" does not include (i)
securities issued at or after the date hereof pursuant to the Merger
Agreement or any of the other agreements contemplated thereby or executed
in connection therewith; (ii) securities issued or issuable upon the
conversion of any Securities or exercise of any Warrants; (iii) securities
issued or issuable upon conversion of, or as a dividend or distribution on,
any shares of Preferred Stock; (iv) securities issued or issuable upon
conversion of, in lieu of, or as a substitute for, the Class B Common
Stock; (v) securities offered to the public pursuant to a registration
statement filed pursuant to the Securities Act; (vi) securities issued in
connection with any borrowings, direct or indirect, from financial
institutions, insurance companies or other lending institutions regularly
engaged in the business of lending money or lease financing by the Company,
whether or not presently authorized, including any type of loan or payment
evidenced by any type of debt instrument, provided that such borrowings are
approved by a majority of the non-employee directors on the Board of
Directors; (vii) securities issued to or in connection with an acquisition,
consolidation, combination, merger or similar transaction approved by a
majority of the non-employee directors on the Board of Directors; (viii)
not more than 3,000 shares of Common Stock issued to each newly contracted
investigative site or Persons affiliated therewith; (ix) shares of Common
Stock issued pursuant to any options or warrants outstanding as of the date
of this Agreement; (x) securities issued to a director, officer or employee
of, or consultant to, the Company or its Subsidiaries directly or pursuant
to any employment, bonus or consulting agreement, or pension, profit
sharing, deferred compensation, stock bonus, retirement, stock purchase,
phantom stock, restricted stock, option or other plan or any other employee
stock incentive program existing or outstanding as of the date of this
Agreement or to the extent such arrangements are approved by the
Compensation Committee of the Board of Directors or a majority of the non-
employee directors on the Board of Directors after the date of this
Agreement or (xi) securities issued to a Regulated Holder pursuant to the
terms and conditions of this Agreement."
(h) A new subsection (d) is hereby added to Section 3.4 of the Investor
Rights Agreement, which subsection (d) reads as follows:
5
(d) In the event any Regulated Holder has the right to purchase any
Securities pursuant to this Section 3.4, but is prohibited from exercising
such right under applicable law, upon written request of such Regulated
Holder, the Company shall, subject to any legal or contractual
restrictions, use commercially reasonable efforts to as promptly as
practicable issue and sell to such Regulated Holder securities that do not
have voting rights but which otherwise have substantially the same terms as
such Securities and which are convertible into or exercisable for voting
securities on such conditions as may be reasonably requested by the
Regulated Holder in light of regulatory considerations then-prevailing (an
"Equivalent Non-Voting Security"), for the price and on such other terms as
------------------------------
are specified in the Sale Notice."
(i) A new Section 3.5 to the Investor Rights Agreement that reads as
follows is hereby added to the Investor Rights Agreement and the existing
Sections 3.5 through 3.16 of the Investor Rights Agreement are hereby
sequentially re-numbered:
3.5 Co-Sale Rights. (a) Should any Investor (the "Selling
-------------- -------
Investor") propose to accept one or more bona fide offers (collectively,
--------
the "Purchase Offer") from any person(s) other than the Company (a
--------------
"Purchase Offeror") to purchase Securities, then the Selling Investor shall
-----------------
notify the Company and each other Investor of the material terms and
conditions of such Purchase Offer within five (5) business days of the
receipt thereof.
(b) The Company shall have the right, exercisable upon written notice
to the Selling Investor and the other Investors within ten (10) business
days after receipt of the notice of the Purchase Offer, to purchase all or
any part of the Securities covered by the Purchase Offer. If the Company
declines to exercise its purchase right, it shall so notify the Selling
Investor and the other Investors within the above-referenced 10-business
day period. If the Company has not exercised its right to purchase all of
the Securities covered by the Purchase Offer, each Investor (other than the
Selling Investor) shall have the right, exercisable upon written notice to
the Selling Investor and the Company within five (5) business days after
the receipt of the Company's notice as to whether or not it elected to
purchase any of the Securities, to purchase all or any part of such
Investor's pro rata portion (as defined below) of the Securities covered by
the Purchase Offer (that are not being repurchased by the Company). An
Investor's "pro rata portion," for purposes of this Section 3.5, is equal
to the product obtained by multiplying (i) the aggregate number of shares
of Class A Common Stock covered by the Purchase Offer (assuming conversion
of any Securities covered by the Purchase Offer convertible into shares of
Class A Common Stock) by (ii) a fraction, the numerator of which is the
number of shares of Class A Common Stock of the Company at the time held by
such Investor (assuming conversion of any Securities convertible into
shares of Class A Common Stock) and the denominator of which is the
aggregate number of shares of Class A Common Stock then outstanding
(assuming conversion of any Securities convertible into shares of Class A
Common Stock). If any Investor fails to fully elect to purchase such
Investor's pro rata share pursuant to this Section 3.5, the Company shall
give notice of such failure to the Investors who did so elect. Such notice
may be made either in writing or orally, if confirmed in writing within
three (3) business days. The Investors receiving such notice
6
shall have five (5) business days from the date of such notice to agree to
purchase their pro rata share of the unpurchased portion. This right of
over-allotment shall exist solely with respect to the Investors herein and
may not be assigned by any of them to any person other than an Affiliate,
including any subsequent holder of the Securities. If the Company and the
non-selling Investors do not collectively elect to purchase all of the
Securities covered by the Purchase Offer, then neither the Company nor any
non-selling Investor shall have any right to purchase any of such
Securities pursuant to this Section 3.5(b) and the Selling Investor shall,
subject to Section 3.5(c) below, have the right to sell such Securities to
the Purchase Offeror on the terms and conditions set forth in the Purchase
Offer for a period of 90 days following the last date on which an Investor
could elect to purchase such Securities pursuant to this Section 3.5(b).
Following such 90-day period, the Selling Investor must again comply with
the terms of this Section 3.5 with respect to any Purchase Offer.
(c) Each Investor that does not exercise its right of first refusal
as set forth in Section 3.5(b) above shall have the right, exercisable upon
written notice to the Selling Investor within fifteen (15) business days
after receipt of the notice of the Purchase Offer, to participate in the
Selling Investor's sale of Securities on the same terms and conditions as
apply to the Purchase Offer. To the extent one or more Investors exercise
such right of participation, the number of Securities that the Selling
Investor may sell pursuant to such Purchase Offer shall be correspondingly
reduced. The right of participation of each Investor shall be subject to
the following terms and conditions:
(i) Each Investor may sell all or any part of that number of
Securities equal to the product obtained by multiplying (i) the
aggregate number of shares of Class A Common Stock covered by the
Purchase Offer (assuming conversion of any Securities convertible into
Class A Common Stock) by (ii) a fraction, the numerator of which is
the number of shares of Class A Common Stock of the Company at the
time held by such Investor (assuming conversion of any Securities
convertible into shares of Class A Common Stock) and the denominator
of which is the aggregate number of shares of Class A Common Stock
then outstanding (assuming conversion of any Securities into shares of
Class A Common Stock).
(ii) If any Investor fails to elect fully to participate in such
sale pursuant to this Section 3.5(c), the Selling Investor shall give
notice of such failure to the Investors who did so elect. Such notice
may be made either in writing or orally, if confirmed in writing
within three (3) business days. The Participants shall have five (5)
business days from the date such notice was given to agree to sell
their pro rata share of the unsold Investor portion. For the purposes
of this paragraph (ii), an Investor's pro rata share shall be the
ratio of (x) the number of shares of Class A Common Stock held by such
Investor (assuming conversion of any Securities convertible into Class
A Common Stock) to (y) the total number of shares of Class A Common
Stock held by the Selling Investor and
7
by the other Investors participating in the sale (assuming conversion of
any Securities convertible into Class A Common Stock).
(iii) Each Investor may participate in the sale by delivering to
the Selling Investor for transfer to the Purchase Offeror one or more
certificates, free and clear of any lien, claim or encumbrance, properly
endorsed for transfer, which represent.
(A) the number of shares of Class A Common Stock that
such Investor elects to sell pursuant to this Section 3.5(c); or
(B) that number of Securities that is at such time
convertible into the number of shares of Class A Common Stock
that such Investor elects to sell pursuant to this Section
3.5(c); provided, however, that if the Purchase Offeror objects
to the delivery of such Securities in lieu of Class A Common
Stock, such Investor may convert and deliver Class A Common Stock
as provided in subparagraph (c)(iii)(A) above. The Company
agrees to make any such conversion concurrent with the actual
transfer of such shares to the Purchase Offeror.
(d) The stock certificate or certificates that the other Investor(s)
delivers to the Selling Investor pursuant to Section 3.5(c) shall be
transferred by the Selling Investor to the Purchase Offeror in consummation
of the sale of the Securities pursuant to the terms and conditions
specified in the Section 3.5(a) notice to the Company and the Investors,
and the Selling Investor shall promptly thereafter remit to such
Investor(s) that portion of the sale proceeds to which such Investor(s) are
entitled by reason of participation in such sale. To the extent that any
Purchase Offeror prohibits such assignment or otherwise refuses to purchase
shares from an Investor exercising its participation rights hereunder in
accordance with the terms hereof, the Selling Investor shall not sell to
such Purchase Offeror any Securities unless and until, simultaneously with
such sale, the Selling Investor shall purchase such shares from such
Investor on the same terms and conditions.
(e) The right of first refusal of the Company and the Investors and
participation rights of the Investors pursuant to this Section 3.5 shall
not apply to (i) any pledge of Securities made by an Investor pursuant to a
bona fide loan transaction with a bank or other institutional or commercial
lender, (b) any transfer to an Affiliate of such Investor; provided that
(A) the Investor shall inform the Company and the other Investors in
writing of such pledge, transfer or gift prior to effecting it and (ii) the
pledgee or transferee shall furnish the Company and the other Investors
with its written agreement to be bound by and comply with all the
provisions of this Agreement applicable to the Investors.
(f) In the event any Regulated Holder has the right to purchase any
Securities pursuant to this Section 3.5, but is prohibited from exercising
such right under applicable law, such Regulated Holder may assign such
right to the Company, and upon such assignment the Company shall, subject
to any legal or contractual requirements, use
8
commercially reasonable efforts to purchase such Securities and, at the
written request of such Regulated Holder as promptly as is practicable,
either (i) use commercially reasonable efforts to purchase such Securities
and sell to such Regulated Holder such Securities or (ii) use commercially
reasonable efforts to sell to such Regulated Holder Equivalent Non-Voting
Securities, in each such case for the price and on such other terms as are
specified in the notice referred to in Section 3.5(a) above."
(j) Section 3.14, now Section 3.15, of the Investor Rights Agreement is
hereby amended and restated in its entirety to read as follows:
3.15 Small Business Concern. The Company represents and warrants to
----------------------
the Investors that, as of January 6, 2000, the Company, taken together with
its "affiliates" (as that term is defined in 13 C.F.R. Section 121.103),
was a "Small Business Concern" within the meaning of 15 U.S.C. Section
662(5), that is Section 103(5) of the Small Business Investment Act of
1958, amended (the "SBIA"), and the regulations thereunder, including 13
----
C.F.R. Section 107, and met the applicable size eligibility criteria set
forth in 13 C.F.R. Section 121.301(c)(1) or the industry standard covering
the industry in which the Company is primarily engaged as set forth in 13
C.F.R. Section 121.301(c)(2). Neither the Company nor any of its
Subsidiaries presently engages in any activities for which a small business
investment company is prohibited from providing funds by the SBIA,
including 13 C.F.R. Section 107.
(k) Section 3.18, now Section 3.19, of the Investor Rights Agreement is
hereby amended and restated in its entirety to read as follows:
"Termination. The covenants and agreements of the Company and the
-----------
Investors contained in Sections 3.1, 3.2, 3.4 through 3.9 and 3.11 through
3.18 shall terminate upon a Public Offering."
(l) A new subsection (j) is hereby added to Section 5 of the Investor
Rights Agreement, which subsection (j) reads as follows:
(j) (i) Notwithstanding any other provision of this Agreement to
the contrary, except as provided in this Section 5(j), the Company shall
not, without complying with the requirements of the immediately following
sentence, except as otherwise required by the provisions of its Amended and
Restated Certificate of Incorporation, as amended and in effect on March
22, 2000 (the "Certificate of Incorporation"), directly or indirectly,
----------------------------
redeem, repurchase, purchase or otherwise acquire, convert, or take any
other action (including any amendment to its Certificate of Incorporation
or Amended and Restated By-laws, as amended and in effect on March 22, 2000
(the "Bylaws")) with respect to the voting rights of, or undertake any
------
other action or transaction (including any merger, consolidation or
recapitalization) affecting, any voting equity securities of the Company if
the result of the foregoing would be to cause the ownership of any class of
voting equity securities of the Company then held by such Regulated Holder
to exceed the percentage or other amount of such class of voting securities
of the Company that such
9
Regulated Holder is permitted to own under applicable law (any such action or
transaction being hereinafter referred to as a "Restricted Transaction"). If the
----------------------
Company proposes to undertake any action or transaction which could reasonably
be expected to constitute a Restricted Transaction, it shall provide each
Regulated Holder at least fifteen (15) days prior written notice thereof and, if
in the written opinion of counsel to any Regulated Holder delivered within ten
(10) days following receipt of such notice, such action or transaction
constitutes a Restricted Transaction with respect to such Regulated Holder, then
the Company shall (A) delay undertaking such Restricted Transaction for the
purpose of using its commercially reasonable efforts to agree on a manner in
which to restructure such action or transaction in a manner reasonably
satisfactory to the Company and such Regulated Holder so that it no longer would
constitute a Restricted Transaction or (B) undertake such Restricted Transaction
and enable, or cause to be enabled, such Regulated Holder (X) to receive in
connection with any such action or transaction a number of Equivalent Non-Voting
Securities equal to the number of voting securities it would otherwise have
received as a result of such action or transaction or (Y) if such Regulated
Holder would not otherwise receive voting securities in connection with such
action or transaction, to exchange a number of the voting securities then held
by such Regulated Holder equal to the excess of the percentage or other amount
of such voting securities that such Regulated Holder is permitted to own under
applicable law for an equal number of Equivalent Non-Voting Securities, all in a
manner that is reasonably acceptable to such Regulated Holder.
(ii) If (A) it becomes unlawful for any Regulated Holder to continue to
hold some or all of the Securities held by it or (B) restrictions are imposed on
any Regulated Holder by applicable law which, in the reasonable judgment of such
Regulated Holder, make it unduly burdensome to continue to hold such Securities,
the Company shall, upon written request of such Regulated Holder, use
commercially reasonable efforts to (X) cooperate with such Regulated Holder in
any efforts of such Regulated Holder to dispose of some or all of such
Securities in a prompt and orderly manner or (Y) take commercially reasonable
steps (including to cause its Certificate of Incorporation and/or Bylaws to be
amended) to create and issue to such Regulated Holder in exchange for Securities
then held by such Regulated Holder an equivalent number of Equivalent Non-Voting
Securities.
(iii) If any Regulated Holder (A) becomes able to hold a greater
percentage or other amount of voting securities of the Company than presently
permitted under applicable law or (B) wishes to transfer any non-voting
Securities held by it to a third person, the Company shall, upon written request
of such Regulated Holder, use commercially reasonable efforts to (X) cooperate
with such Regulated Holder in any efforts of such Regulated Holder to dispose of
some or all of such non-voting Securities held by such Regulated Holder in a
prompt and orderly manner or (Y) take commercially reasonable steps (including
to cause its Certificate of Incorporation and/or Bylaws to be amended) to create
and issue to such Regulated Holder in exchange for such non-voting Securities
then held by such Regulated Holder an equivalent number of shares of securities
that have voting rights but that otherwise are substantially the same as such
10
Securities (an "Equivalent Voting Security"); provided, however, that this
----------------------------- -------- -------
clause (iii) shall only apply to non-voting Securities that were issued to
such Regulated Holder in lieu of or in exchange for voting Securities
solely by virtue of such Regulated Holder's status as a Regulated Holder."
(m) Annex A to the Investor Rights Agreement is hereby amended and
restated in its entirety to read as Annex A attached to this Agreement.
Section 3. Joinder of Parties. The parties hereto agree that each of LHC
------------------
Corporation, Charter Growth Capital, L.P., Charter Growth Capital Co-Investment
Fund, L.P., CGC Investors, L.P., The CIT Group/Venture Capital, Inc., Delphi
Ventures IV, L.P. and Delphi BioInvestments IV, L.P. shall be a party to the
Investor Rights Agreement, as amended by this Agreement, and shall be considered
an "Investor" thereunder, and that each such party shall be entitled to the
rights and benefits and subject to the duties and obligations of an Investor and
a holder of Securities thereunder, as fully as if such parties had been original
signatories thereto in such capacities.
Section 4. Consent. For all purposes of the Investor Rights Agreement,
-------
including, without limitation, Section 5(c) thereof, the undersigned, on behalf
of themselves and the other Investors, consent to the amendments and joinder of
parties set forth in this Agreement.
Section 5. Waiver. For purposes of Section 3.4 of the Investor Rights
------
Agreement, the undersigned hereby waive, on behalf of themselves and the other
Investors, the Investors' right of first refusal to purchase any shares of
Series A-7 Preferred Stock, any Equivalent Non-Voting Securities and any
Equivalent Voting Securities issued and sold by the Company to any Regulated
Holder or transferee thereof on the date hereof or hereafter pursuant to the
terms of this Agreement, as amended, and the Company's obligation to notify the
Investors of any such issuance and sale.
Section 6. Counterparts. This Agreement may be executed in multiple
------------
counterparts, each of which shall be an original and all of which when taken
together shall constitute one and the same agreement.
Section 7. Descriptive Headings. The descriptive headings in this
--------------------
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
Section 8. Continuing Effect. This Agreement shall not constitute an
-----------------
amendment or waiver of any other provision of the Investor Rights Agreement
except as expressly set forth above, and the Investor Rights Agreement shall
otherwise remain in full force and effect in accordance with its terms.
11
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Its: President
----------------------------------
LHC CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Its: President
----------------------------------
CHARTER GROWTH CAPITAL, L.P.
By: CGC Partners, L.P., its general partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Its: General Partner
CHARTER GROWTH CAPITAL
CO-INVESTMENT FUND, L.P.
By: CGC Partners, L.P., its general partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Its: General Partner
CGC INVESTORS, L.P.
By: CGC Partners, L.P., its general partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Its: General Partner
THE CIT GROUP/EQUITY INVESTMENTS, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Its: Vice President
▇▇▇▇▇ PARTNERS III, L.P.
By: Claudius L.L.C.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Its: Senior Managing Member
▇▇▇▇▇ PARTNERS INTERNATIONAL III, L.P.
By: Claudius L.L.C.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Its: Senior Managing Member
▇▇▇▇▇ EMPLOYEE FUND III, L.P.
By: Wesson Enterprises, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Its: President
DELPHI VENTURES III, L.P.
By: Delphi Management Partners, L.L.C.
General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Its: Managing Member
DELPHI BIOINVESTMENTS III, L.P.
By: Delphi Management Partners, L.L.C.
General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Its: Managing Member
DELPHI VENTURES IV, L.P.
By: Delphi Management Partners, L.L.C.
General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Its: Managing Member
DELPHI BIOINVESTMENTS IV, L.P.
By: Delphi Management Partners, L.L.C.
General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Its: Managing Member
▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇ CAPITAL FOCUS II, L.P.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Partners II, L.L.C., its
general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------
Its: President
----------------------------------
TD ORIGEN CAPITAL FUND, L.P.
By: TD II Regional Partners, Inc., its general
partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------
Its: President
---------
TD JAVELIN CAPITAL FUND, L.P.
By: JVP, L.P., its general partner
By: JVP, Inc., its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
Its: President
-------------------------------
PREMIER RESEARCH WORLDWIDE, LTD.
By: /s/ ▇▇▇▇. ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Its: Chief Financial Officer
-------------------------------
ANNEX A
LHC Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Silverside ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Charter Growth Capital, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Charter Growth Capital Co-Investment Fund, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
CGC Investors, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
The CIT Group/Equity Investments, Inc.
▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ Partners III, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ Partners International III, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ Employee Fund III, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Delphi Ventures III, L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Delphi BioInvestments III, L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Delphi Ventures IV, L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Delphi BioInvestments IV, L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ California
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
H&Q Affiliated Research Investors, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ Employee Venture Fund, ▇.▇. ▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇ Capital Focus II, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Law Offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
TD Origen Capital Fund, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Law Offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
TD Javelin Capital Fund, L.P.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Law Offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
GE Capital Equity Investments, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Premier Research Worldwide, Ltd.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
